17.26 - B. Mistake Of Fact Or Law

• Jurisdiction: New York

B. Mistake of Fact or Law

A person who commits an offense under a mistaken belief of fact is not relieved of criminal liability unless his mistake negates the existence of a required culpable mental state, or if the statute defining the offense provides that such a mistake is a defense or exemption, or if the mistake is of a kind that supports the defense of justification under article 35.²⁸⁰³

There are few cases construing PL § 15.20. An example of a mistake that negates the mens rea would be where the defendant, charged with unauthorized use of a vehicle, proves that he took his neighbor’s car without permission because he had used the car on prior occasions with permission and assumed his neighbor would not mind on this occasion; he is therefore mistaken over the question of whether he had the owner’s consent. The defendant’s mistake negates the culpability requirement of using a vehicle “knowing that he does not have the consent of the owner.”²⁸⁰⁴ The mistake defense is also afforded by PL § 130.10, which provides a specific exemption or defense to a third-degree rape charge if the defendant was unaware that the girl with whom he had intercourse suffered from a mental defect or incapacity that rendered her consent to the act legally ineffective.

In offenses where the age of a child is an element, the defendant’s knowledge of the child’s age is not itself an element of the crime, even where the statute defining the offense includes the term “knowingly” as part of the culpability requirement.²⁸⁰⁵ The fact that a defendant did not know the age of the child is not a defense, except where another statute expressly says so. The only statute that expressly authorizes such a defense is PL § 235.22, which outlaws disseminating indecent material to minors; it provides as a defense that the defendant had reasonable cause to believe that the minor was 17 or older and the minor produced identification purporting to establish that he was 17...